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Winter 1998
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The Working Time Directive is intended to ensure the fair and equal treatment of employees, and affects every employer in the UK. In particular, those who supply or operate computerised payroll or personnel systems may be called upon to modify their software to help monitor compliance. Tyrone Ballantine, from MultiValue specialist recruitment consultants Prospectus, provides an overview of the main provisions and answers a few frequently-asked questions.
This article is designed to give brief, but precise details regarding the Working Time Regulations 1998 (S.I. 1998/1833) as implemented by the EC (European Commission). It will explain how some of the regulations work and hopefully answer some queries you may have.
The regulation/directive is intended to make sure all employees are treated fairly and as one. It is designed to give new rights and obligations relating to work and rest.
The principal provisions are as follows:
Is anyone excluded from the regulations?
Employees who fall within the following sectors are exempt from the regulations:
The exclusions relate specifically to the above sectors. Management will have to consider whether employees fall within a sector or not. An employee may work at an airport or a railway station, but he/she will not necessarily be excluded from the regulations. In addition, workers employed in the transportation of goods or people may also be excluded.
The self-employed are also exempt as they generally pursue a business activity on their own account. Self-employed people are unlikely to receive a ‘wage’ - payment is likely to be in the form of an invoice for work carried out. Generally speaking self-employed people are willing to accept or reject work, therefore governing the amount of hours they work.
What is working time?
Working time is defined as time when an employee is working at their employer’s
disposal and carrying out their duties. If you are on call yet free to carry
out personal activities the time spent cannot be classed as working time. Also
if you are on call within the workplace (during unsociable hours for example)
but are free to sleep then these hours spent could not be classed as working
time.
Taking a lunch break is also deemed to be non-working time, eating whilst at the desk and free to carry out daily duties would be at the discretion of your employer.
Travelling to and from the work place is not generally regarded as working time as you are unlikely to be actually working or carrying out your daily tasks.
In cases where work is taken home, the hours elapsed would only count as working time if previously specified and agreed by your employer.
The regulations are not set in concrete as such and there is room for negotiation
between management and the workforce in order to diffuse any doubts as to what
is working time.
The stated ‘working time’ definition (see above) is relatively general
and is likely to vary considerably in differing workplaces and industries.
Rest and Breaks
Detailed in the following are the Regulations’ provisions referring
to employees’ rests and breaks.
Firstly an employee is entitled to a minimum of 11 consecutive hours between each working day. They are also entitled to an uninterrupted rest period of a minimum 24 hours for each 7 day period. In some cases this may be calculated over a 2 week period therefore entitling an employee to a 48 hour period or two days. Weekly rest is also additional to any paid annual leave.
Shift workers may not be able to take their full entitlement if their shift
pattern changes.
New rulings regarding rest breaks have been implemented in the Regulation. An
employee is allowed one 20 minute uninterrupted break if their working time
exceeds six hours. The break should not be taken at the start or the end of
their working time. The break must not overlap with an employees daily rest
period described earlier. It is generally down to the employer’s discretion
as to whether rest breaks should or should not be paid. There is no specific
statement in the Regulations relating to the payment or non-payment of breaks.
Who is entitled to leave?
A worker must have been continuously employed by the employer for 13 calendar
weeks before the entitlement to annual leave arises.
Paid Annual Leave
Currently an employee is entitled to a minimum of three weeks paid leave rising
to four weeks after the 23rd November 1999.
In cases when a worker’s leave falls on the 23rd November 1999 their leave entitlement is determined according to how much of the leave year falls either side of the 23rd November. The leave will then be three weeks plus a fraction, proportional to the period of the leave year that falls after 23rd November. This fraction is then rounded to the nearest day.
To be entitled to leave an employee has to be employed for more than 13 calendar weeks. It is the employer’s responsibility to ensure that all workers work the minimum 13 week period before being eligible. The employer also has to ensure that their employees’ leave is correct according to the Regulations. They must also consider whether an employee receives a full week’s pay for every week of entitled leave. Where a worker loses part of their entitlement to annual leave because their employment terminates during a leave year, the worker has a right to payment in lieu.
Public Holidays
There is no statutory entitlement regarding bank and public holidays. If
you are contractually entitled not to work on such days then these will not
effect your entitled annual leave. Again it is up to the employer if these days
are paid or not. In some cases when an employee receives a payment for a public
holiday then this will count towards their entitlement to annual leave.
What records do employers need to keep?
Adequate records showing staff hours etc should be kept updated to show how
the employer is adhering to the Working Time Regulation. These records will
be useful when calculating salaries, holiday leave etc. Employers are not required
to keep a running calculation of their employees’ average weekly working
time. If an employer operates a 9-5 working day then records can be classed
as days worked i.e. 8 hours/days worked.
Employees can work for longer than the 48 hour period but this has to be agreed
by both parties concerned. In cases when the 48 hour limit is exceeded the employer
has to have written agreement with the employee, which has to be recorded along
with the additional hours worked. The records described have to kept for two
years and be made readily available for Health and Safety Executive Inspectors
or the local authority Environment Health Officer should they require them.
How will all this be enforced?
The entitlement to rest periods will be enforced by workers bringing a complaint
to an Employment Tribunal. Employment Tribunals provide an informal, accessible
means for individuals to assert statutory rights and protections relating to
their employment. If denied the entitlement to a rest period a worker may complain
to a Tribunal. However, before taking this step the work should first seek to
settle any dispute with their employer by mutual agreement.
The Advisory, Conciliation and Arbitration Service (ACAS) has a duty to conciliate in claims under the Regulations.
The information for this article was compiled from a variety of written sources including “A Guide to Working Time Regulations” published by the dti (Department of Trade and Industry). To obtain a copy of the booklet, telephone 0845 6000 925.
Also see FI.1998/1833, available from HMSO and good booksellers.
Tyrone Ballantine
Prospectus Computer Registrations
Last Updated: 30 Jun 1999